Abortion on Demand

Abortion on Demand

"They [the authors of the Constitution] conferred, as against the Government, the right to be let alone - the most comprehensive of rights and the right most valued by civilized men [and women]."

S. C. Just. Louis Brandeis - 1928

The answer to the question of whether or not the United States Constitution provides women with a guarantee that they may terminate their pregnancies voluntarily is a relatively simple one. The Fourteenth Amendment to the Constitution contains the only definition of American citizenship found within the document. It defines citizens as "all persons born or naturalized" in the United States, and it confers upon them the equal protection of the laws. Under this definition of citizenship, an unborn human embryo or an previable fetus that is incapable of sustaining its own life outside the uterus, even with the assistance of medical technology, cannot be a person because it has not been and cannot be born or naturalized in the United States. Since it cannot be considered to be a person legally, it cannot be entitled to the guarantee of the equal protection of the laws provided by the Fourteenth Amendment. Until the fetus is capable of sustaining its own life outside the uterus, until its independent viability can be considered to be a presumptive fact, it cannot possess any legal rights or privileges whatsoever, and hence should be considered to be an integral part of its mother's body legally. Because the Fourth Amendment guarantees "the right of the people to be secure in their persons" from capricious governmental intrusions and the Fourteenth Amendment precludes the states from abridging "the privileges and immunities of citizens of the United States," an implied constitutional right to privacy exists within the Constitution. Thus, a pregnant woman retains the right to treat her embryo or previable fetus as she would any other part of her body, unencumbered by invasive governmental regulations.

The creation of human life is a process, not an event. If it is not a process and human life begins at the moment of conception, three simplistic questions are immediately suggested:

Should people stop celebrating their birthdays and begin to celebrate their "conception days" instead?

Why doesn't any society or organization in the world today or throughout recorded history, including the Roman Catholic Church, treat a natural spontaneous abortion as the death of a human being by conducting either funerals or burial rites for early-term miscarriages?

Most importantly, isn't any premeditated act of contraception that occurs after fertilization, including the use of birth control pills, intrauterine devices, and "morning-after" pills, the moral and hence legal equivalent of murder?

If zygotes are persons, then every act of contraception that occurs after conception has to incorporate the due process of law for it to be constitutional. Only the most exigent circumstances permit private individuals to harm or kill one another legally. Regardless of the nature of the conditions that created the pregnancy, such as rape or incest, or any non-fatal risks to the health of the pregnant woman, a civilized society cannot permit any one person to injure or destroy any other person without formal governmental approbation. In other words, if the born and the unborn are to be equated morally and if killing a human being who was conceived as the result of rape or incest is prohibited legally, how can killing a human embryo that was conceived by rape or incest be lawful? If the born and the unborn possess the same degree of humanity, then the law must either condone or preclude both of these acts similarly if the arguments of the "conceptionalists" are to bear any semblance of logical consistency.

Moreover, notwithstanding rare and extreme circumstances such as self-defense or compassionate euthanasia requested by a rational person with a terminal illness, only duly certified representatives of our democratic government possess the moral authority to extinguish human life. Most importantly, the Fifth and Fourteenth Amendments stipulate that the due process of law is a mandatory prerequisite for the constitutional exercise of this lethal power. If conception confers humanity, then, because the creation of human life within the United States confers American citizenship, an ethical government could not permit its post-natal citizens to kill its prenatal citizens capriciously. Thus, the contention that human life begins at conception begets an inescapable syllogism. If every human zygote is a human being; and if the premeditated killing of one private individual by another, notwithstanding any extenuating circumstances such as self-defense or euthanasia, is murder; then the premeditated killing of every fertilized ovum must be murder, as well. If all human life is of equal value to the state, as it must be, and if every human zygote is a person, then the fatal harm of the zygote's certain death should take precedence over any non-fatal harm to the health or welfare of the prospective mother. Only if the mother could prove beyond a reasonable doubt in a court of law that either the pregnancy or the act of childbirth would result in her certain death would the harm to both parties be equalized, thereby justifying contraception on the grounds of self-defense.

If human zygotes and embryos are people, then the definition of citizenship found in the Fourteenth Amendment must be modified from "all persons born or naturalized..." to "all persons conceived, born or naturalized...." Excluding one class of people, such as prenatal persons, from the legal protections enjoyed by another class of people, such as postnatal persons or naturalized immigrants, contravenes the spirit and intent of our republic in general and this amendment in specific. Notwithstanding any effects that a logically consistent application of this determination of humanity and citizenship might have upon the immigration laws of the United States, the life of a prenatal American should have the same intrinsic value as the life of any other American ethically. Hence, the legal prohibitions and penalties associated with abortion should not differ from those associated with homicide. If the opponents of abortion succeed in adding the word "conceived" to the Fourteenth Amendment, and if its protections apply to every person equally, as the amendment stipulates explicitly, then any law that distinguishes between homicide and feticide must be inherently and grossly unconstitutional.

According to the CDC, slightly more than 730,000 million women aged 15-44 chose to terminate their pregnancies by an inducing an abortion in 2011, which resulted in an abortion ratio of slightly less 22% when compared to pregnancies that resulted in live births.¹ These numbers did reflect "historic lows" for American abortion, according to the CDC, both in terms of actual events and in the ratio of abortions to live births. Nevertheless, and notwithstanding the medical professionals who conducted these procedures, to stigmatize nearly three quarters of a million American women who made the personal and painful decision to terminate their pregnancies as murderers, and then prosecute them for committing this heinous crime, would be as logistically impractical as it would be unconscionably callous.

Finally, government has an obligation to protect more than human life. It also has an obligation to protect every person within its jurisdiction from the physical harm of intentionally or negligently injurious acts. If zygotes and embryos are human beings, then they are entitled to the equal protection of the laws guaranteed by the Fourteenth Amendment. Hence, every law that pertains to the latter must pertain to the former, as well. For example, every law that protects a child from the moment of its birth against physical abuse should protect an embryo to the same degree from the moment of its conception. The equal protection clause of the Fifth and Fourteenth Amendments would preclude the federal and state governments from distinguishing between child abuse and fetal abuse in any way whatsoever.

The contrived and convoluted logic of equating the born and the unborn legally should be patently obvious to all but the most delusional zealots. Because conception determines gender and, hence, the potential for future procreation, it begins the creation of life; it does not complete it. After successful pregnancies, babies are born, and although they possess immature reproductive organs, they contain the potential to create human life. As they develop into adults, these organs mature, and their potential to create human life increases significantly. During coitus, the gametes of egg and sperm both have the potential to become a human life, but unless the egg is fertilized these cells die and their death is the termination of possible, not actual, human life. When the gametes unite to form a zygote, its potential to become a human life increases exponentially, but the death of a zygote is the termination of possible, not actual, human life. When the zygote attaches to the wall of the uterus and becomes a human embryo, its potential to become a human life increases yet again, but the death of an embryo is the termination of possible, not actual, human life. As the embryo eventually grows into a fetus, its potential to become a human life continues to grow and the likelihood of humanity increases slowly from possible to probable to presumptive. Until the presumption of human life outside the uterus occurs, however, the death of a fetus is the termination of possible or probable, not actual, human life. Once the fetus has become viable and capable of sustaining human life outside of its mother's uterus independently, with or without the assistance of the medical technology, it has become presumptive human life. It is at this point, neither before nor after, that the state should assume a compelling interest in providing the fetus with elementary protections from intentional abuse, injury and death. It is at this point that the responsibility of the state to protect the health and welfare of its constituents should supersede the right of the mother to be protected from an unconstitutional invasion of her privacy. Finally, when the fetus actually demonstrates its capability for sustaining human life, after it is born, it should be considered to be a human being, and hence entitled to the full and equal protection of the laws. In short, human law should coincide with natural law, and natural law demonstrates quite clearly that the creation of human life is an evolutionary process rather than an instantaneous event.

Therefore, the Fourth and Fourteenth Amendments to the Constitution preclude state and federal governments from interfering in any way whatsoever with any action that might inhibit or prevent conception, the attachment of a zygote to the uterine wall, or the abortion of an embryo or early term fetus. All of these efforts on the part of potential parents should be defined as private acts of birth control and, as such, shielded from governmental regulation. In Griswold v. Connecticut (1965), the Supreme Court struck down an 1879 state law that prohibited the use of contraception by married adults as an illegitimate governmental infringement upon the implied constitutional right to privacy by a margin seven to two. In writing the majority opinion, Justice William Douglas found penumbras that formed "zones of privacy" around the civil rights guaranteed by the First, Fourth and Fifth Amendments. These penumbras of privacy apply to every form of birth control until a fetus attains presumptive viability. From gamete to zygote to embryo to early term fetus, the Constitution precludes the government from abrogating an individual's right to privacy in order to protect possible or potential human life.

The conflict between the right of parents to contraceptive privacy and the obligation of the government to protect the inalienable right of life for each of its inhabitants becomes more problematic after the fetus attains ex-utero viability, however. Since government certainly has the ability and obligation to protect existing human life by enacting and enforcing the appropriate legislation, it should possess that same ability and obligation to do so for presumptive human life, as well. As every mother knows, the difference between an embryo a day after conception and a fetus a day before birth is not merely a difference in degree, it is a difference in kind, as well. Thus, as the law differentiates profoundly among the different stages of human development ex-utero, it should also differentiate profoundly among the different stages of human development in-utero. State and federal legislatures should differentiate their laws among embryos, viable fetuses and babies in much the same manner as they differentiate them among children, adolescents and adults.

On the one hand, notwithstanding any efforts by overzealous prosecutors with a political agenda or the South Carolina Supreme Court, a fetus is not a human being. Human beings are, by definition, born. Therefore, harming or killing a fetus intentionally cannot be construed to be child abuse or murder because the presumption of human life does not constitute the reality of it. Conversely, a fetus capable of self-sustenance should possess our most fundamental human right: the right to a healthful life. Although every adult, including a pregnant woman, has a right to privacy that is guaranteed by the Fourth Amendment, the government should possess the ability to extend the enforcement of its statutes into a woman's uterus if it has a reasonable expectation that independently viable human life exists within it. Hence, the ethical resolution of this issue rests upon determining the point at which the obligation of the state to protect the inalienable human right of life for a presumptively viable fetus supersedes its obligation to protect the civil right of privacy for a pregnant woman.

According to the National Right to Life Committee, thirty states have enacted some form of statues that protect embryos or fetuses from death by means other than abortion.² The vast majority of them should be rescinded as unconstitutional, either because they endeavor to codify the protection of possible human life prior to viability in violation of the Fourth Amendment or because they equate prenatal life with human life in violation of the Fourteenth Amendment. For example, California's Penal Code 187 (a) defines murder as "the unlawful killing of a human being, or a fetus, with malice aforethought."³ Conversely, nineteen states do not afford any kind of protection to fetuses whatsoever and the state of New York has apparently conflicting statutes.⁴ Finally, the United States Congress considered an "Unborn Victims of Violence Act" in 2003, which defined an "unborn child" as "a member of the species Homo sapiens, at any stage of development, who is carried in the womb."⁵ Because the phrase "member of the species Homo sapiens" is simply obfuscating and legalistic jargon for the word "person," this bill is intrinsically unconstitutional in that it conflicts directly with the definition of citizenship found in the Fourteenth Amendment as "all persons born...." If this bill contained the word "viable" before the phrase "member of the species Homo sapiens," it would protect those fetuses that could be born, and hence it would become entirely constitutional. Since it does not, it is not. If certain federal legislators wish to revise the definition of citizenship in the Fourteenth Amendment or exclude pregnant women from the protection that the Fourth and Fourteenth Amendments afford to them, they should revise the Constitution in order to do so.

Nevertheless, the majority opinion in Roe v. Wade (1973) not only permits but also advocates the adoption of laws to punish individuals who intentionally kill or harm a fetus in the latter stages of pregnancy. As Justice Blackmun wrote in the majority opinion,

"With respect to the State's important and legitimate interest in potential life, the 'compelling' point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications."⁶

Further, it is nonsensical to presume that government is entitled to protect a presumptively viable fetus from a fatal act but not from an injurious one. Therefore, if Roe v. Wade authorizes the government to protect the life of a viable fetus, it should also permit the government to protect its health and safety from deliberate or negligent injury, as well. In the same way that every human culture regards miscarriage, stillbirth and infant death as appalling but fundamentally different events, ethical laws should recognize the profound dissimilarities among injuries suffered by pre-viable, presumptively viable and living human beings. Just like the presumption of innocence in a criminal trial, the presumption of "meaningful life" for a late-term fetus, although not a fact, could play an essential role in establishing "State regulation[s] protective of fetal life after viability." In short, the "Unborn Victims of Violence Act" might become the "Protection of Viable Fetuses Act," define fetal viability as occurring after the fetus is able to breath air, which occurs after at least twenty-one weeks of gestation, and punish anyone who might harm or injure these presumptive human beings, either maliciously, capriciously, or negligently, thereafter. In so doing, this new law could not only fulfill the federal government's obligation to protect its constituents, it could meet the standard of "logical and biological justifications" established by Roe v. Wade, as well.

The government could be compelled to prove both viability and demonstrable fetal injury beyond a reasonable doubt in order to secure a conviction for violating this law, however. For example, reckless or deliberate behavior during the latter seventeen weeks of pregnancy that might injure a fetus, such as the immoderate use of drugs or alcohol by a pregnant woman, would not constitute a criminal act necessarily. It could only rise to the level of criminality if the government was able to prove that a direct causal link existed between the behavior of the mother and a discernible fetal injury. In short, once a fetus achieves the status of independent viability it transmogrifies from the private contents of a woman's uterus to a presumptive human life. It is at this point in gestation, neither before nor after, that the fetus's explicit right to the equal protection of the laws denoted in the Fourteenth Amendment supersedes the probable mother's implicit right to privacy connoted in the Fourth Amendment. Hence, because "State regulation protective of fetal life after viability ... has both logical and biological justifications," our state and federal governments could enact statues that proscribe post-viable feticide and fetal abuse expressly.⁷

What Can We Do?

Because the lungs of a fetus have not matured sufficiently to exchange carbon dioxide for oxygen until after the twenty-first week of gestation at the soonest, medical science had determined conclusively that viability occurs at some point within the final seventeen weeks of pregnancy.⁸ Thus, any fetus that has developed normally and begins its twenty-second week of gestation should be considered to be a presumptive human being, and Congress could adopt measures that proscribe any form of fetal injury or abuse, including death by abortion, during this final stage of pregnancy. Fetal injury or abuse could be defined as any action that exhibits a malicious intent to harm or injure a viable fetus, or that demonstrates a reckless disregard for its health or safety.

Because embryos and previable fetuses are parts of a pregnant woman's body, any harm to them should be construed as harm done to the woman solely, and federal law should not distinguish between harming an embryo or a previable fetus and harming any other human body part. Thus, any law that proscribes any contraceptive actions undertaken by pregnant women during this period of their pregnancies, from birth control pills to "morning-after" pills to chemical or surgical abortions to Intact Dilation and Extractions, regardless of the nature of the procedure violates the Fourth Amendment to the Constitution. Conversely, anyone who negligently or intentionally kills or injures a presumptively viable fetus within the last seventeen weeks of a pregnancy could be prosecuted for either feticide or fetal abuse. Finally, the penalties for committing these crimes could escalate according to the degree of the injury suffered by the victimized fetus.

As an ancillary to the issue of adult abortion rights, requests for surgical abortions from legal minors should be construed as any other medical treatment ethically by deferring to the American Medical Association's Code of Medical Ethics. Specifically, since 38 states require some kind of parental involvement prior to providing a minor with abortion services⁹, Congress could pass a law that would prohibit any state from requiring any kind of parental or governmental notification or consent, and require that state laws coincide the AMA's Code, which states,

"When minors request confidential services, physicians should encourage them to involve their parents. This includes making efforts to obtain the minor's reasons for not involving their parents and correcting misconceptions that may be motivating their objections.

"... physicians should permit a competent minor to consent to medical care and should not notify parents without the patient's consent. Depending on the seriousness of the decision, competence may be evaluated by physicians for most minors. When necessary, experts in adolescent medicine or child psychological development should be consulted. Use of the courts for competence determinations should be made only as a last resort."¹⁰ [Emphasis added.]

A minor's decision to terminate her pregnancy surgically may have been induced by a myriad of factors, and it is beyond the scope of the law to establish uniform guidelines concerning parental notification and consent that are both salutary and ethical. As with any other medical procedure, the patient and her doctor have the ultimate responsibility to evaluate the unique physical, psychological, social and familial consequences of any medical procedure might have for the patient. Hence, she and her private medical practitioner, and not a public institution or individual, such as a state government or judge, have the ultimate responsibility to ascertain the patient's possession of the emotional and intellectual competence necessary to constitute informed consent. Congress should ensure that this principle is enforced uniformly throughout the United States.

In conclusion, American citizens, regardless of their race, age, creed, gender or condition of pregnancy, are entitled to be secure in their persons from the tyrannical intrusions of an imperious government. The Fourteenth Amendment's guarantee of the equal protection of the laws extends only to actual and, to a lesser degree, presumptive human life, not to possible or potential human life. Therefore, a pregnant woman's Fourth Amendment right to be secure in her person effectively precludes the government from proscribing any form of contraception, including abortion, prior to the presumptive viability of a fetus as an independent human being. At that point in time, however, state and federal governments acquire the constitutional power and ethical obligation to protect viable fetuses from fatal or serious bodily injury with appropriate legislation. As individuals grow from childhood to adolescence and into adulthood, their legal rights, privileges, and responsibilities grow commensurately. Therefore, just as the creation of human life from conception to gestation to birth is a natural growth process, the degree of protection that the law extends to it during the course of its prenatal development could reflect nature and grow, as well. In this way, the contraceptive privacy of the parents is sustained, and society's moral responsibility to protect and defend human life and health is fulfilled.

1http://www.cdc.gov/reproductivehealth/data_stats/#Abortion

2http://www.nrlc.org/Whatsnew/sthomicidelaws.htm

3http://www.leginfo.ca.gov/cgibin/waisgate?WAISdocID=78803919780+1+0+0&WAIS action=retrieve

4http://assembly.state.ny.us/leg/?cl=82&a=28

5http://www.theorator.com/bills108/s146.html

6http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=410&invol=113

7 Ibid.

8http://content.nejm.org/cgi/content/abstract/329/22/1597

9http://www.guttmacher.org/statecenter/spibs/spib_PIMA.pdf

10http://www.ama-assn.org/ama/pub/category/8355.html